Recently, we discussed how a century old rule barring mention of liability insurance may actually create bias in a jury, favoring a defendant. Now, I’d like to talk about the “bifurcated trial system”, and how this system can actually create jury bias as well.

New York is divided into four judicial departments. Nassau County and Suffolk County fall into the Second Judicial Department. While the rules for conducting trials are generally the same in all departments, there are some important distinctions between each of the judicial departments. The most important difference between departments is the bifurcated trial system, which is utilized in the Second Department.

The concept of bifurcation is simple in personal injury cases. A case is divided into two separate and distinct parts for trial – liability and damages. Each part is tried independently of each other. First, there is a trial on liability (or fault). There are opening arguments, presentation of evidence, closing arguments, jury deliberations and a verdict.

Once a verdict is reached there could be a second trial on damages, but only if the verdict found that the defendant was at fault. If it was determined that the defendant was free of fault the case proceeds no further. If there was a finding of fault on the defendant there is a second trial on damages. Again, there are opening arguments, presentation of evidence, closing arguments, jury deliberations and a verdict.

The rationale for this system is to avoid the waste of judicial resources and cost. The damages portion of a trial can be lengthy. Why do it if there is no fault on the defendant? This system saves time and money.

However, there are some distinct disadvantages of this system for a plaintiff. First, the issue of injury is not allowed to be mentioned in the liability portion of the trial. So a jury will decide a plaintiff’s fate without even knowing the extent of their injuries. This can make a big difference in some cases.

After trying cases for approximately twenty years, I have found that most juries are sympathetic to the defendant in the liability portion of the trial. Often, they seem to be wondering, “Why did you need to drag us down here and take up our time to hear about this accident?” It’s not until after they decide fault that they hear about a plaintiff’s injuries. And that’s precisely when I notice a change in a jury’s demeanor.

The problem is that the jury may never get to hear about a plaintiff’s injuries because of the bifurcated trial system. A trial attorney’s biggest fear is that a jury will decide a case against a plaintiff in the liability phase because they surmise from looking at the plaintiff that he/she is not that hurt and feel bad for the defendant. Additionally, the inconvenience of time that the bifurcated trials can take may cause juries to make bias decisions.

A skilled plaintiff’s attorney can work around the bifurcated system and devise ways of indicating to a jury that the plaintiff’s injuries are in fact severe. Not all attorneys understand the nuances required to get that message across, though. And, if an attorney cannot accomplish this, their client is at a great disadvantage. The defendant’s attorney will certainly take advantage of the fact that Suffolk County and Nassau County juries are generally sympathetic to their clients during the liability phase of the trial.

I strongly feel that this bifurcated trial system presents an issue for plaintiffs in many cases. Yes, the rationale behind it may be sound. But, it’s up to a jury to decide a plaintiff’s fate. And in many instances, they may look at a plaintiff, deem them to be in good health, and take pity on a defendant before even having a chance to know the extent of a plaintiff’s injuries.